BINDAI -v- ARMSTRONG [2016] WASC 341 (20 October 2016)

2 On 17 October 2014 Mr Bindai was sentenced to 8 months' imprisonment on prosecution notice HC807/2014 and the two suspended terms of imprisonment were ordered to be served concurrently with each other and with the term of 8 months' imprisonment to which he was sentenced on prosecution notice HC807/2014.

3 By a notice of appeal filed on 7 June 2016 Mr Bindai appeals against his conviction on prosecution notice HC807/2014 and the orders that he serve the two suspended terms of imprisonment on the ground that:

The appellant's conviction upon his own plea dated 17 October 2014 before the Magistrates Court at Kununurra for the charge of breach of violence restraining order (HC807/14) is a miscarriage of justice.

Particulars

(a) The violence restraining order (KUN/RO/1561 of 2012 dated 30 September 2014) the subject of the charge is a nullity as it was made by the Magistrates Court at Kununurra without power or jurisdiction;

(b) Upon the true facts the appellant could not in law have be (sic) guilty of the offence of breach of violence restraining order (HC807/14).'

4 Corboy J granted leave to appeal on 9 August 2016.

The granting of the restraining order and the variations of that order

6 On 13 December 2012 Mr Bindai's partner, Ms Jugarie, applied to the Magistrates Court at Kununurra in application number MC/CIV/KUN/RO/1561/2012 for a violence restraining order against Mr Bindai. In her application Ms Jugarie indicated that she wished to have the first hearing of the application in the absence of Mr Bindai. On the same day her Honour Magistrate Webb held a hearing of Ms Jugarie's application in the absence of Mr Bindai and made an interim violence restraining order against him. The order prohibited Mr Bindai from damaging or attempting to damage Ms Jugarie's property, behaving in an intimidatory, offensive or emotionally abusive manner towards her, behaving in a manner towards her that was likely to lead to a breach of the peace, remaining upon or loitering near any premises where Ms Jugarie lived, worked or was educated or be within 10 metres of the nearest external boundary of those premises or approaching within 10 metres of Ms Jugarie. The violence restraining order was for the benefit of Ms Jugarie and the two children of Ms Jugarie and Mr Bindai. That interim order was served on Mr Bindai on 15 December 2012. On 12 February 2013 that interim violence restraining order was made a final order with a duration of 2 years from 15 December 2012.

7 In or around August 2014 Ms Jugarie applied for a variation of the violence restraining order. In her application Ms Jugarie said that she wanted the order changed from a noncontact order to a nonmolestation order because she wanted to have a relationship with Mr Bindai and she wanted the children to have a relationship with him. On 6 August 2014 the Magistrates Court notified Ms Jugarie that the application was listed for hearing on 20 August 2014. On 20 August 2014 Magistrate Webb made a violence restraining order which prohibited Mr Bindai from damaging or attempting to damage Ms Jugarie's property, behaving in an intimidatory, offensive or emotionally abusive manner towards her or behaving in a manner towards her that was likely to lead to a breach of the peace. The order did not prohibit Mr Bindai approaching Ms Jugarie being near premises where she lived, worked or was educated. On 26 August 2014 the violence restraining order made on 20 August 2014 was served on Mr Bindai.

8 On 30 September 2014 Ms Jugarie made a second application for a variation of the violence restraining order. In that application Ms Jugarie said that she wanted the order changed so that Mr Bindai could not come near her anymore. The Magistrates Court notified Ms Jugarie that her application was listed for hearing on the same day. The application came before Magistrate Webb. Ms Jugarie appeared before her Honour. Mr Bindai was not present. The learned Magistrate made a violence restraining order which prohibited Mr Bindai, amongst other things, from entering, remaining upon or loitering near any premises where Ms Jugarie lived, worked or was educated or be within 15 metres of the nearest external boundary of those premises and from approaching within 20 metres of Ms Jugarie. On 9 October 2014 the violence restraining order made on 30 September 2014 was served on Mr Bindai.

9 The solicitor for Ms Jugarie has deposed that she has inspected the Magistrates Court restraining order file and that it appeared to her that the date of the second application to vary the violence restraining order and the date of the hearing of that application were the same and that there was no certificate of service of the second application or summons to Mr Bindai on the court file.

10 It appears from the transcript of the hearing on 30 September 2014 that the learned Magistrate thought that she was dealing with an application for an interim violence restraining order. She said to Ms Jugarie that the order that she was making was like her making a new restraining order, changing it from a nonmolestation order to a total noncontact order, that Mr Bindai may object to the restraining order and that if he did so the matter would have to come back to court. However the violence restraining order made on 30 September 2014 was a final order. Her Honour did not satisfy herself that Mr Bindai had been served with a summons giving him notice of the application to vary the restraining order. Her Honour knew that Mr Bindai had not been given notice of the application.

11 As the evidence of the inspection of the Magistrates Court restraining order file and the transcript of what occurred on 30 September 2014 confirms that Mr Bindai did not have notice of the application to vary the restraining order and that the learned Magistrate was aware that he had not been given notice it is appropriate to admit that evidence pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA).

12 Mr Bindai successfully appealed to the District Court against the issuing of the varied final restraining order: Bindai v Jugarie [2016] WADC 68.

Provisions of the Restraining Orders Act concerning violence restraining orders and the variation of restraining orders

13 A person seeking to be protected by a violence restraining order who applies for an order must indicate in their application whether the applicant wishes to have the first hearing of the application held in the absence of the respondent or proceed directly to a defended hearing - s 26(1) Restraining Orders Act. If the applicant wishes to have the first hearing held in the absence of the respondent the registrar is to fix a hearing for that purpose - s 26(2) and the hearing is to be held in the absence of the respondent - s 27(1). If the court makes a violence restraining order the duration of which is more than 72 hours the order is an interim order - s 29(3). The registrar is to prepare and serve the violence restraining order - s 30.

14 Within 21 days of being served with an interim order the respondent must complete the respondent's endorsement copy and return it to the registrar - s 31. If the respondent does not object to the order becoming final, or if the respondent does not return the respondent's endorsement copy to the registrar within 21 days the interim order becomes a final order: s 32.

15 A person protected by a restraining order may apply to vary that order: s 45(1). If an application is made to vary a restraining order the court registrar is to fix a hearing for that purpose and summons the person who is bound by the order to the hearing: s 47(1). Sections 48 and 49 provide:

(a) a person summonsed under section 47(1) or 47(2) does not attend;

(b) ...,

a hearing fixed under that section and the person who made the application does attend, the court -

(c) if it is satisfied the summonsed person was served with the summons ... is to hear the matter in the absence of the summonsed person ...; or

(d) otherwise, is to adjourn the hearing.

(1) Subject to section 48, at a hearing fixed under section 47 of an application made under section 45 the court may -

(a) dismiss the application; or

(b) if it decides to vary an interim order or a final order -

(i) cancel the original order and make a replacement order that contains the variations; or

(ii) make an additional interim order or final order, to be read with the original order, that states the variations;

(c) if it decides to cancel an interim order or a final order, cancel the order.

The validity of the variation to the restraining order made on 30 September 2014

16 Mr Bindai contends, and the respondents concede, that the violence restraining order made on 30 September 2014 was a nullity.

17 A judicial order of an inferior court made without jurisdiction has no legal force: State of New South Wales v Kable [2013] HCA 26; (2013) 252 CLR 118 [56] (Gageler J).

18 In Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163 Brennan, Deane, Toohey, Gaudron and McHugh JJ said at 176 that in considering what constitutes 'jurisdictional error' it is necessary to distinguish between inferior courts and tribunals exercising governmental powers. 'Putting to one side some anomalous exceptions, the inferior courts of this country are constituted by persons with either formal legal qualifications or practical legal training'. At 177 their Honours commenced their explanation of what constitutes jurisdictional error by an inferior court by saying: 'In what follows, the anomalous courts or tribunals which fall outside the above broad descriptions can be ignored'.

19 The Magistrates Court is not an anomalous court as that term was used in Craig.

20 An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Jurisdictional error is most obvious where the inferior court purports to act outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which lies wholly or partly outside the theoretical limits of its functions and powers. An example of an inferior court acting wholly outside the general area of its jurisdiction would be a court with jurisdiction limited to civil matters purporting to hear a criminal charge. An example of an inferior court acting partly outside the general area of its jurisdiction would be a court with jurisdiction in civil matters purporting to make an order in a civil case of a kind that it lacked power to make, such as an order for specific performance when its remedial powers were limited to awarding damages. Less obviously, an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the exercise of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain: Craig, 177.

21 The interpretation of a statute that an inferior court's jurisdiction is contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist, produces such an inconvenient result that no enactment dealing with proceedings in any of the ordinary courts should receive such an interpretation unless the intention is clearly expressed: Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369, 391 (Dixon J).

22 I cannot see a clearly expressed intention in the Restraining Orders Act that service on the person bound by the order of a summons to attend the protected person's application to vary the violence restraining order, as distinct from the court's conclusion that the summons has been so served, is an essential condition of the exercise of the jurisdiction to vary the violence restraining order. The requirement in s 48(2)(c) that the court be satisfied that the summonsed person was served with the summons is a clear indication, in my view, that if the court is so satisfied then it has jurisdiction to hear the application. This means that if the court were to be satisfied that the person bound by the order had been served with a summons then the court would have jurisdiction to vary a violence restraining order, even if the court were to be wrong in being so satisfied. Such an error in relation to a final order could be corrected by appeal pursuant to s 64 of the Restraining Orders Act. The order, as varied, would be valid until the appeal was allowed.

23 However in this case the learned Magistrate did not satisfy herself that Mr Bindai was served with the summons. By reason of s 48(2) it was an essential condition of the jurisdiction to hear the application to vary the violence restraining order in the absence of Mr Bindai that she be so satisfied. As the learned Magistrate was not satisfied that Mr Bindai was served with the summons she did not have jurisdiction to vary the violence restraining order in his absence. In making an order varying the violence restraining order her Honour was acting outside the limits of her functions and powers. I conclude therefore that the order made on 30 September 2014 varying the violence restraining order was made without jurisdiction and was of no legal force.

24 It follows that a miscarriage of justice occurred when Mr Bindai was convicted of breaching the violence restraining order.

25 The appeal is approximately 19 months late. The respondents do not oppose an extension of time to appeal being granted. Where there has been a long delay in lodging an appeal exceptional circumstances must exist before an extension of time will be granted unless it can be demonstrated that there will be a miscarriage of justice if an extension of time is not granted: Cameron v The Queen [2004] WASCA 16; (2004) 142 A Crim R 424 [28] (McKechnie J).

26 As Mr Bindai was convicted of breaching a violence restraining order which was of no legal force a miscarriage of justice would occur if an extension of time to appeal were not granted. I grant an extension of time to appeal.

27 Section 8(1)(b) of the Criminal Appeals Act 2004 (WA) permits an appeal to a single judge on the ground that there has been a miscarriage of justice. An appeal may be made even if the decision was made after a plea of guilty: s 8(2).

28 There are three wellrecognised, but not exhaustive, circumstances in which a plea of guilty will be set aside on appeal: when the appellant did not understand the nature of the charge or did not intend to admit guilt, when, upon the admitted facts, the appellant could not in law have been guilty of the offence and when the guilty plea was obtained by improper inducement, fraud or intimidation and the like: Borsa v The Queen [2003] WASCA 254 [20]; Vella v The State of Western Australia [2006] WASCA 129 [26].

29 On the admitted facts of this case Mr Bindai could not in law have been guilty of the offence of breaching the restraining order because the variation to the restraining order made on 30 September 2014 was of no legal force. He could not in law have been guilty of breaching the suspended terms of imprisonment because he could not have been guilty of breaching the restraining order.

30 There has been a miscarriage of justice and the appeal will be allowed.